Scott v. Harper Recreation, Inc., Docket No. 92995

• Decision Date: 15 October 1993
• Docket Number: Docket No. 92995
• Citation: 506 N.W.2d 857,444 Mich. 441
• Parties: Andre SCOTT, Plaintiff-Appellee, v. HARPER RECREATION, INC., d/b/a Club UBQ, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 857

506 N.W.2d 857

444 Mich. 441

Andre SCOTT, Plaintiff-Appellee, v. HARPER RECREATION, INC., d/b/a Club UBQ, Defendant-Appellant.

Docket No. 92995.

Supreme Court of Michigan.

Oct. 15, 1993.

[444 Mich. 442] Rhodes, Laramie & Williams, P.C. by Robert E. Laramie, Southfield, for plaintiff-appellee.

Kallas & Henk, P.C. by Scott L. Feuer, Bloomfield Hills, for defendant-appellant.

OPINION

PER CURIAM.

The plaintiff was shot while in the parking lot of a night club that had advertised a lighted and guarded parking area. He sued the night club, stating several theories of recovery. The circuit court granted summary disposition, which the Court of Appeals reversed. 192 Mich.App. 137, 480 N.W.2d 270. We believe that summary disposition was appropriate, and we therefore reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.

I

Defendant Harper Recreation, Inc., operated the Club UBQ, a night club with music and dancing. ¹ The defendant advertised with written fliers that included a representation that it provided "Free Ample Lighted Security Parking." ²

The plaintiff was at Club UBQ on the evening of Thursday, August 27, 1987. He had been there twenty or thirty times previously over the preceding three or four years. Sometimes he parked in the parking lot, sometimes on the street.

There is no dispute that, on the evening of August 27, the lot was fenced and lighted. Further, it is clear from the deposition testimony of the plaintiff and others that security guards were present.

The plaintiff left Club UBQ after midnight, and walked to his car in the club parking lot. At his car, he was surprised by an unidentified gunman, who shot him six times. The plaintiff suffered serious facial injuries, including the loss of an eye.

II

The plaintiff filed a complaint and, several months later, an amended complaint against the defendant. He recounted the basic facts of the case, and alleged two theories of recovery. Count I of the amended complaint was entitled "Fraud and Estoppel." Count II was labeled "Voluntary Assumption."

The plaintiff's fraud/estoppel count contained these factual allegations: The defendant's advertisements were intended to induce attendance by the general public, "without fear of criminal activity." Because of the advertisements, the plaintiff believed the parking area to be secure and thus parked in the lot. He "reasonably believed himself safe from criminal activity" while in the lot, and the advertisements caused him to relax his normal vigilance for criminal activity. As a result, his assailant was able to surprise him at his car. The lot was lighted and fenced, but the defendant failed to provide security personnel.

In the fraud/estoppel count, the plaintiff asserted that, by virtue of its advertisements, the defendant accepted a responsibility to the plaintiff to provide lighted security parking and, thereby, to protect the plaintiff from an assault of the sort that occurred in this case. The plaintiff added that the defendant should be estopped from denying the existence of such an obligation.

In the assumed-duty count, the plaintiff alleged that the defendant's advertising was intended to bring more patrons to Club UBQ "by eliminating the fear of criminal activity." He proposed that the advertisements constituted a voluntary undertaking to provide a safe parking lot (or, as he also stated, "to exercise reasonable care" to provide a safe lot). The defendant was said to have breached this voluntarily assumed responsibility by failing to provide adequate security to make the lot safe, and by allowing an armed assailant to be present in the lot.

The defendant filed a motion for summary disposition under MCR 2.116(C)(8), asserting that the plaintiff had failed to state a claim on which relief could be granted. The defendant asserted that, under Michigan law, it did not owe a duty to the plaintiff to protect him from the criminal acts of third parties. Williams v. Cunningham Drug Stores, 429 Mich. 495, 418 N.W.2d 381 (1988).

The circuit court initially granted summary disposition on the assumed-duty count, alone. The court relied upon Tame v. A.L. Damman Co., 177 Mich.App. 453, 442 N.W.2d 679 (1989), where the Court of Appeals declined to impose liability on a merchant who recognized the need for security and voluntarily kept a security guard on the premises.

Seeking summary disposition on the fraud/estoppel count, as well, the defendant renewed its motion. This time, it cited both MCR 2.116(C)(8) and MCR 2.116(C)(10), thus adding an assertion that there was no genuine issue as to any material fact, and that it was entitled to judgment as a matter of law.

Again ruling under MCR 2.116(C)(8) and citing Tame, the circuit court granted summary disposition on the fraud/estoppel count. The court further held that "the allegations relating to fraud pertain to a future event" and therefore were not "actionable fraud and misrepresentation."

In sum, the circuit court's rulings provided the defendant full summary disposition in its favor.

III

The plaintiff appealed in the Court of Appeals, which reversed the summary disposition and remanded the case to the circuit court for further proceedings. 192 Mich.App. 137, 480 N.W.2d 270 (1991).

The Court of Appeals began its analysis with the assumed-duty count of the plaintiff's amended complaint. It distinguished Williams as a nonfeasance case, saying that the present case concerns alleged misfeasance with regard to a voluntarily assumed obligation to provide security. The Court of Appeals explained:

"In the case at bar, given the holding in Williams, it is clear defendant did not have a responsibility to provide secure parking for its patrons. However, because defendant did so and allegedly advertised this fact in order to attract patrons, it voluntarily assumed the duty to provide security. This fact distinguishes the case at bar from Williams. Plaintiff's complaint clearly alleges active misconduct in that defendant advertised secure parking, but allegedly failed to provide the same at the time of plaintiff's assault. Although defendant did not have the duty to provide security, once it did so and patrons relied on this fact to do business there, a cause of action could exist if defendant was negligent in its performance of that responsibility and thereby increased the risk of harm to patrons. In his complaint, plaintiff has alleged defendant increased the risk of harm by advertising secure parking, thereby causing patrons, including plaintiff, to be less wary of criminal activity. The extent of the duty assumed by defendant would involve factual issues based on advertisements and security actually provided, and a corresponding standard of care." 192 Mich.App. at 142-143, 480 N.W.2d 270.

Turning to the fraud/estoppel count, the Court of Appeals noted the elements of a cause of action for fraud, ³ and agreed with the circuit court that future promises cannot give rise to such an action. ⁴ However, the Court disputed the circuit court's conclusion that the defendant's advertisements contained only promises regarding future events:

"The statement at issue here refers to the existence of security provided for defendant's patrons in its parking lot. This was a statement of fact, concerning conditions in existence at the time made, not a promise for future security to be provided. Nor do we believe the statement constituted an expression of opinion or 'puffing.' Van Tassel v. McDonald Corp, 159 Mich App 745; 407 NW2d 6 (1987). Defendant went beyond expressing an opinion that its parking lot was 'safe.' Instead, defendant made reference to 'security,' indicating some form of protection was in fact offered to patrons. Defendant's statement therefore was a statement of fact." 192 Mich.App. at 145, 480 N.W.2d 270.

For those reasons, the Court of Appeals set aside the summary disposition entered by the circuit court on both counts of the plaintiff's amended complaint.

IV

The defendant applied for leave to appeal. Observing that the circuit court had not ruled upon the defendant's motion for summary disposition under MCR 2.116(C)(10), we remanded the case to circuit court, while retaining jurisdiction. The circuit court was instructed to hear and decide the motion. 442 Mich. 881 (1993).

After considering the submissions of the parties, the circuit court ruled that, with regard to both counts of the plaintiff's amended complaint, summary disposition should enter under MCR 2.116(C)(10). The case has now returned here, for further consideration of the defendant's application for leave to appeal.

V

We noted in Williams that questions regarding duty are for the court to decide as a matter of law. ⁵ 429 Mich. at 500, 418 N.W.2d 381. While a jury ordinarily decides questions regarding reasonable care, those also are to be determined by the court as a matter of law where there are overriding concerns of public policy. 429 Mich. at 500-501, 418 N.W.2d 381. For reasons grounded in public policy, 429 Mich. at 500-504, 418 N.W.2d 381, we then held in Williams that a merchant is not ordinarily required to protect customers from the criminal acts of third persons:

"We conclude as a matter of law that the duty of reasonable care that a merchant owes his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. The merchant is not an insurer of the safety of his invitees, and for reasons of public policy he does not have the responsibility for providing police protection on his premises." 429 Mich. at 504, 418 N.W.2d 381.

In the present case, the plaintiff seeks to avoid the rule of Williams by relying on the principle that a person who voluntarily undertakes a responsibility can be held liable if the volunteer's negligence is a proximate cause of injury. ⁶ The plaintiff also attempts to assert an action for fraud.

To the extent that this...